During last week’s confirmation hearings for Sonia Sotomayor, there were repeated calls from all concerned to show fidelity to the law, to call balls and strikes, to keep personal opinions out of judicial decision making. These statements were emblematic of the modern rules of confirmation hearings, in which any admittance of the role of personal interpretation will automatically raise the hackles of the other side, whether it’s John Roberts admitting “yes, I generally side with the powerful” or Sotomayor saying “as an underdog, I understand where underdogs come from.” Instead, everyone maintains the fiction that it’s all about facts and laws.
Of course, being a judge is very much about ruling on how the facts of a case fit the law as written. But sometimes the facts don’t exactly fit the law, and so the judge has to make some….wait for it….judgments. If it was all automatic, just applying the facts and law, then we could have machines do it, or bureaucrats. Even the Wall Street Journal recently noted that “judges are not algorithms.” If this judging gig was just calling balls and strikes, then the Supreme Court and courts of appeal and every other multi-judge panel would never have split decisions; everyone would simply agree on the facts and the law.
But we do have split decisions, because the facts are sometimes complicated and messy, and how a judge thinks can influence how they sort through the mess. Rather than pretending this doesn’t happen, wouldn’t we be better off addressing it and actually understanding how a nominee might rule? Maybe not. That might inflame senators’ passions so much that nobody could ever be approved. But it seems crazy to have a system where everyone is lying, we all know they’re lying, and the lies are essential to making the system work.
By the way, I’m not just talking out of my butt here. The friendly staff at the U.S. District Court listened to my diatribe and gently corrected me where appropriate.